CIVIL LITIGATION WEEK THREE: OVERVIEW OF CIVIL LITIGATION

SALIENT POINTS FROM CIVIL LITIGATION 2016/2017

NIGERIA LAW SCHOOL LAGOS CAMPUS

(GOD IS THE KEY TO SUCCESS)

WEEK 3: GENERAL OVERVIEW OF CIVIL LITIGATION

This Lecture serves as the foundation for this course, your understanding of this week will go a long way in helping you understand the course. The various sources of civil litigation, ADR, Jurisdiction and Courts in Nigeria.

ONE THING MRS ODUKOYA KEEPS SAYING: IS IT CLEAR?

ALTERNATIVE DISPUTE RESOLUTION

NOTE that under the RULES OF COURT, the court is obligated to refer parties to ADR

IN LAGOS: PREAMBLE LAGOS HIGH COURT RULE 2(2)(a) which provides that the duties of the court in case management to mandate the parties to use an ADR mechanism when the court considers it appropriate and facilitating the use of such procedure. See ORDER 25 RULE 2 LAGOS HIGH COURT RULE

IN ABUJA: ORDER 1 ABUJA HIGH COURT RULES: A court or judge with the consent of the parties may encourage settlement of any matters before it adopting the ADR mechanism.

Also, THE RULES OF PROFESSIONAL CONDUCT RULE 15(3)(d): a lawyer in representing his client shall not fail or neglect to inform his client of the option of alternative dispute resolution mechanism before resulting to or continuing litigation on behalf of his client.

            ADVANTAGES OF ADR

·         Cheaper than Litigation

·         Faster than litigation

·         Preservation of relationship between parties

·         Confidentiality

·         Less formal

·         Involvement of the parties

·         De-congest the court of cases

·         Enforcement of resolution by parties is easier

DISADVANTAGES OF ADR

·         Hinders the development of case law

·         Lack of binding force except in Arbitration

·         The arbitrator is not protected against hostility while in litigation the judge can give judgment without fear

·         It is more expensive in the long run

·         The other methods have no legal enforcement only arbitration and conciliation have ACA

·         It is limited in some cases

LIMITATION OF ADR (where you can’t adopt ADR)

·         Election Petition

·         Matrimonial causes

·         Capital offenses which are not compoundable

·         Injunctions restraining an immediate act

·         Interpretation of statutes or the constitution

·         Enforcement of fundamental rights

·         Declaration of rights

SOURCES OF CIVIL LITIGATION LAW

·         Rules of the Courts, e.g(Supreme Court Rules; Court of Appeal Rules; Federal High Court Rules. High Court Rules,High Court of Lagos (Civil Litigation) Rules 2004)

·         Constitution of the Federal Republic of Nigeria, 1999.

·         Various Legislation on Courts(Supreme Court Act, Court of Appeal Act, Federal High Court Act, High Court Act,etc

·         Decisions of Superior Courts on procedure

·         Practice Direction made under the Rules of Court

·         other statutes touching on civil procedure e.g. the Evidence Act 2011, Companies and Allied Matters Act, Sheriff and Civil Process Act, Matrimonial Causes Rules etc

NOTE: THE RELEVANCE AND APPLICATION OF ENGLISH RULES OF PRACTICE AND PROCEDURE TO OUR COURT

Prior to 1987, when there is a lacuna the court was empowered to apply the English Rules of Practice and Procedure.

The position changed after 1987, The rules of the court now removes the express provision that Judges should apply the English Rules of Practice and Procedure.

IN LAGOS: ORDER 45 RULE 13: Where no provision is made by these rules or by any other written law, the court should adopt such procedure as will in its view do substantial Justice between the parties

            JURISDICTION (FOR THE PURPOSE OF BAR PART II VERY IMPORTANT)

The concept of jurisdiction according to Justice Mohammed Bello, “is the blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life; any attempt to resuscitate it without infusing blood into it would be an abortive exercise

The Court of Appeal in Amechi v. INEC (2008) 5 NWLR (Pt.1080) SC 227, stated as follows: “Jurisdiction is a term of comprehensive import embracing all kinds of judicial action. It is basically the legal right by which judges exercise their authority to hear and determine the subject matter in controversy between parties to a suit. It is the basis, foundation and the conduit of access to court in adjudication under the Nigerian legal system.”

Furthermore, Jurisdiction may be Territorial or Geographical and it could be Divisional Jurisdiction (the judicial division of the court within which to commence an action)

N.B: THE LOCAL VENUE FOR COMMENCING AN ACTION IS BASED ON RULES OF COURT. FAILURE TO COMMENCE AT THE APPROPRIATE JUDICIAL DIVISION OF A COURT THAT HAS JURISDICTION IS NOT USUALLY FATAL AND CAN BE WAIVED

                                                WHILE

STATE OR TERRITORIAL JURISDICTION IS FUNDAMENTAL AND CAN’T BE WAIVED BY PARTIES…..

Also we have PROCEDURAL AND SUBSTANTIVE jurisdiction. PROCEDURAL JURISDICTION IS THE MEANS OR METHODS OF INVOKING THE JURISDICTION OF THE COURT AND CAN BE WAIVED. AN EXAMPLE IS THE REQUIREMENT FOR SERVING PRE-ACTION NOTICE ON CERTAIN BODIES BEFORE COMMENCING AN ACTION OR THE INSTITUTION OF A SUIT OR WRIT OF SUMMON

                                    WHILE

SUBSTANTIVE JURISDICTION IS THE AUTHORITY WHICH A COURT HAS TO DECIDE MATTERS THAT ARE LITIGATED BEFORE IT OR TAKE COGNIZANCE OF MATTERS PRESENTED IN A FORMAL WAY FOR ITS DECISION.

Consequently, in the locus classicus case of Madukolum v. Nkemdilim (1962) 2SCNLR Pt. 342, the Supreme Court laid down that a court is competent to adjudicate when:

(a)    It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and

(b)   The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(c)    The case comes before the court initiated by the due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

                                    

 COURTS IN NIGERIA

Supreme Court

ESTABLISHED: SECTION 230 (1) CFRN

COMPOSITION: it is composed of the Chief Justice of Nigeria and not more than 21 Justices.s.230 (2) CFRN 1999.

CONSTITUTION: at least 5 justices on Appeals from the Court of Appeal while not less than 7 Justices will sit on the following matters (Original jurisdiction):

a. Disputes between the Federation and a State or between two States

b. Disputes between the National Assembly and the President

By S. 1 of the Supreme Court (Additional Original Jurisdiction) Act 2002 and S. 233(2) of the 1999 Constitution as amended three additional exclusive jurisdictions has been conferred.

c. Disputes between States.S.232(1)(2),CFRN 1999.

d. Dispute between the National Assembly and a State of the Federation in so far as the dispute involves any question whether of law or fact non which the existence or extent of a legal right depends

e. The National Assembly and any State House of Assembly

 QUALIFICATION FOR APPOINTMENT AS A JUSTICE OF THE COURT: 15 years post call experience. See S. 231(3) of the 1999 Constitution as amended.

APPOINTMENT: it is done by the President on the recommendation of the National Judicial Council (NJC) subject to confirmation by the Senate. See S. 231 of the 1999 Constitution as amended (applicable not only to the Chief Justice but to all the justices of the Supreme Court).

APPELLATE JURISDICTION: Exclusive appellate jurisdiction over appeals from the Court of Appeal. Appeals to the Supreme Court could be as of right or with leave. Its decision is final and not appealable. It is the apex Court in Nigeria. See S. 235 of the 1999 Constitution as amended.

REMOVAL OF JUSTICES OF THE COURT: the CJN is removed by the President acting on an address supported by two-third majority of the Senate. Other Justices of the Court are removed by the President on the recommendation of the NJC. See S. 292 of the 1999 Constitution as amended.

NOTE: CONDITIONS FOR INVOKING ORIGINAL JURISDICTION OF THE SUPREME COURT

1. Must be brought by the ATTORNEY GENERAL of the state or federation-s.20 SC Act
2. Subject matter of dispute must be one where SG/FG are direct beneficiaries-AGF V. AG IMO; PLATEAU STATE V. AGF.
3. Must pertain to existence of a legal right

NOTE: ADDITIONAL CONDITIONS FOR INVOKING ORIGINAL JURISDICTION OF THE SUPREME COURT BY NAT.ASS/SHAs.-

This is provided for in  S. 2 Supreme Court (Additional Original Jurisdiction) Act 2002.

PARAGRAPH 1 AND 2 of the Supreme Court (Additional Original Jurisdiction) Act 2002.

STATE HOUSES OF ASSEMBLY

• There must be a resolution of the house by SIMPLE MAJORITY OF members
• All members must be PRESENT AND SITTING at the time the resolution is put to vote.

NATIONAL ASSEMBLY ONLY

• Resolution MUST have been passed by BOTH houses.
• The resolution is by SIMPLE MAJORITY of members of EACH HOUSE PRESENT AND SITTING at the time of voting.

THE COURT OF APPEAL

ESTABLISHMENT: See s. 237 of the 1999 Constitution as amended.

COMPOSITION: composed of the President and not more than 70 Justices of the Court (See Court of Appeal Act 2010) but not less than 49.

QUALIFICATION FOR APPOINTMENT: not less than 12 years post-call experience with 3 with customary Law knowledge and 3 with Islamic Law qualification. See S. 238(3) of the 1999 Constitution as amended.

APPOINTMENT: it is done by the President on the recommendation of the National Judicial Council (NJC) while the President of the Court’s appointment is subject to confirmation by the Senate. See S. 238(1) of the 1999 Constitution as amended.

CONSTITUTION: at least 3 Justices sit on a matter. See S. 239(2) of the 1999 Constitution as amended.

ORIGINAL EXCLUSIVE JURISDICTION:

o   It has jurisdiction to determine if a person has been validly elected to the office of the President or Vice President

o   whether his term of office has ceased

o   The office of President or Vice President has become vacant.

o   See S. 239(1) of the 1999 Constitution as amended.

EXCLUSIVE APPELLATE JURISDICTION: It has exclusive appellate jurisdiction on decisions from the Federal High Court, High Court of the States and the FCT, Sharia Court of Appeal, Customary Court of Appeal, National Industrial Court, Code of conduct Bureau, Court Martial and the National and State Houses of Assembly Election Tribunals. See S. 240 of the 1999 Constitution as amended.

FINAL DECISIONS OF THE COURT OF APPEAL:

1. Decisions on appeals from the National and State Houses of Assembly Election Tribunal are final. See S. 246(3) of the 1999 Constitution as amended.

2. Decisions on appeals from the National Industrial Court are final SAVE an appeal on Chapter IV on Fundamental Rights enforcement will further lie to the Supreme Court. See 255 ‘cc’ of the 2nd Alteration Act to the Constitution 2011.

REMOVAL: same as that of the Supreme Court. see S. 292 of the 1999 Constitution as amended.

THE FEDERAL HIGH COURT

ESTABLISHED: S. 249 of the 1999 Constitution as amended.

COMPOSITION: it is composed of the Chief Judge and such other number of Judges as prescribed by an Act of the National Assembly.

CONSTITUTION: at least one judge can sit on a matter. See S. 253 of the 1999 Constitution as amended.

QUALIFICATION FOR APPOINTMENT: At least 10 years post-call experience. See S. 250 (3) of the 1999 Constitution as amended.

APPOINTMENT: It is done by the President on the recommendation of the National Judicial Council (NJC) while the Chief Judge’s appointment is subject to confirmation by the Senate. See S. 250(1) of the 1999 Constitution as amended.

ORIGINAL EXCLUSIVE JURISDICTION: it has an exclusive jurisdiction to sit on the following matters to wit; revenue of the Government/any of its agencies, taxation of companies and persons subject to Federal taxation, customs and excise, banks and banking matters, matters arising from the management of the Companies and Allied-Matters Act, copyright, admiralty/shipping, diplomatic and trade representation, citizenship and aliens/extradition, bankruptcy and insolvency, aviation/safety of aircraft, arms and ammunition, drugs and poisons, mines and minerals; and any matter related to the decision/act of the Federal Government or any of its agencies. See S. 251(1) of the 1999 Constitution as amended.

THE STATES AND THE FCT HIGH COURTS

ESTABLISHED: S. 270 and S. 255 of the 1999 Constitution as amended respectively.

APPOINTMENT: The Chief Judge and other Judges of the High Courts of the States are appointed by the Governor on the recommendation of the National Judicial Council while the Chief Judge’s appointment is subject to confirmation of the House of Assembly. See S. 271(1) of the 1999 Constitution as amended.

While foregoing, the appointment of the Chief Judge and other Judges of the FCT High Court is done by the President on the recommendation of the National Judicial Council and the Chief Judge’s appointment is subject to the confirmation of the Senate. See S. 256(1) of the 1999 Constitution as amended.

QUALIFICATION: at least 10 years post call experience. See S. 271(3) of the 1999 Constitution as amended.

CONSTITUTION: at least one judge can sit over a matter. See S. 273 of the 1999 Constitution as amended.

JURISDICTION of the State High Courts. Is provided under s.272 of the 1999 Constitution. It can assume jurisdiction over any civil proceeding, however limited by s. 251 of the Constitution which deals with exclusive jurisdiction of the Federal High Court

APPELLATE JURISDICTION OF THE HIGH COURT. It has appellate jurisdiction over decisions of Magistrate Courts,Area Courts, Customary Courts

THE NATIONAL INDUSTRIAL COURT

It is recognised as a superior Court of Record pursuant to S.6 (altering S. 254’CC’) of the Third Alteration Act 2010 to the 1999 Constitution and the National Industrial Court Act 2004.

COMPOSITION: it is composed of a President and other number of Judges to be determined by the Act of the National Assembly.

CONSTITUTION: at least one judge can sit over a matter or not more than 3 Judges as directed by the President of the Court. See S. 6 (254E) of the Third Alteration Act 2010 to the Constitution.

APPOINTMENT: the appointment of the President and other Judges of the Court is done by the President on the recommendation of the National Judicial Council and the President’s appointment is subject to the confirmation of the Senate. See S. 6 (254B) of the Third Alteration Act 2010 to the 1999 Constitution.

QUALIFICATION FOR APPOINTMENT: A Lawyer with at least 10 years post call experience and has considerable knowledge in the law and practice of industrial relations/employment conditions in Nigeria. See S. 6 (254B (3)) of the Third Alteration Act 2010 to the 1999 Constitution as amended.

JURISDICTION: see section 7 NICA. It has jurisdiction to try the following matters notwithstanding the provisions of sections 251, 257 and 272 of the 1999 Constitution as amended:

ORIGINAL JURISDICTION

1. Related to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace like conditions of service, health, safety etc

2. Relating to or arising from Factories Act, Trade Dispute Act, Trade Unions Act, Labour Act, Labour Act and any Law or Act relating to labour/employment etc

3. Relating to the grant of any Order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action

4. Relating to any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution in relation to employment, labour, industrial relations, trade unionism, employer’s association or any matter which the Court has jurisdiction to hear

5. Relating to any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith

6. Relating to unfair labour practice or international best practices in labour, employment and industrial relations matters

7. Relating to any dispute arising from discrimination or sexual harassment at workplace

8. Relating to the application or interpretation of international labour standards

9. Connected with child labour, child abuse, human trafficking or any matter related hereto

10. Relating to the determination of any question as to the interpretation and application of any collective agreement, award/judgment of the Court, term of settlement of any trade dispute, award or order made by an arbitral tribunal in respect of trade dispute, trade union dispute or employment dispute as may be recorded in a memorandum of settlement, trade union/ Constitution etc.

11. Relating to the payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of an employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto

12. Relating to appealsfrom decisions of the Registrar of Trade Unions, or matters connected to, appeals from decisions or recommendations of any administrative body or Commission of enquiry arising from employment, labour, trade unions or industrial relations;

13. Relating to or connected with the registration of collective agreements; and

14. Such other jurisdiction, civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.

See S. 6(254C) of the Third Alteration Act 2010 to the 1999 Constitution.

APPELLATE JURISDICTION

1. APPEALS from decisions of the Registrar of Trade Unions, or matters connected to,

2. APPEALS from decisions or recommendations of any administrative body or Commission of enquiry arising from employment, labour, trade unions or industrial relations

 THE MAGISTRATE COURTS

It is established by the State Laws.In the North, they are known as District Courts in the exercise of their civil jurisdictions.Magistrates are usually appointed by the State Judicial Service Commissions.

In Lagos, there are no grades of Magistrate Courts but the limit of damages or monetary claim that the Court has jurisdiction to impose/award is N10 million. The constitution of the Court is one.

JURISDICTION OF MAGISTRATE COURT IN LAGOS

By s.28 of the Magistrate Court Law 2009, vest civil jurisdiction over:

a. all personal actions arising from contract, tort, or both, where the debt or damage claimed, whether as a balance of account or otherwise is not more than ten million naira, N10,000,000.00 at the time of filling

b. All actions between landlord and tenant for possession of any land, agricultural, residential or business premises or house claimed under agreement or refused to be delivered up, where the annual rental value does not exceed ten million at the time of filling provided that , in all actions , the claimant may in addition, claim arrears of rent and mesne profits irrespective of the fact that the total claim exceed ten million naira

c. Appointment of guardian ad litem and to make orders, issues and give directions relating to their appointment; and grant of injunctions or orders to stay, waste or alienate or for the detention and preservation of any property, the subject of such action or to restrain breaches of contractor tort, and to handle appeals from the Customary Court

d. Actions of recovery of penalties, charges, rates, taxes, expenses, cost of enforcement of statutory provisions,contributions or other like demands, which may be recoverable by virtue of any existing law

 THE SHARIA COURTS OF APPEAL

In the Federal Capital Territory, FCT, it is compulsory to have it but for other States of the Federation it can be established by any State that requires it. See S. 275 of the 1999 Constitution as amended.

COMPOSITION: It is composed by the Grand Kadi and other Kadis as prescribed by the House of Assembly of the States or the National Assembly if it relates to the FCT. See S.275 (2) (b) of the 1999 Constitution as amended.

QUALIFICATION AND APPOINTMENT: it is either a legal practitioner with 10 years post-call experience with a recognized certificate in Islamic Law OR a non-lawyer who is an Islamic scholar from an approved institution with an experience of not less than 10 years. See S.276 (3) of the 1999 Constitution as amended.

JURISDICTION: it only has appellate jurisdiction from lower Courts (e.g. Area/Sharia Courts) on Islamic personal Law. See S.277 of the 1999 Constitution as amended.

CONSTITUTION: it is presided by at least 3 Kadis. See S. 278 of the 1999 Constitution as amended.

THE CUSTOMARY COURT OF APPEAL OF THE FCT AND THE STATES

In the Federal Capital Territory, FCT, it is compulsory to have it but for other States of the Federation it can be established by any State that requires it. See S. 280 of the 1999 Constitution as amended.

COMPOSITION: it is composed by the President and other Judges. See S. 280 (2) of the 1999 Constitution as amended.

QUALIFICATION, APPOINTMENT AND REMOVAL: apply that of the FCT High Court for the Customary Court of Appeal of the FC T while that of the State High Courts for the ones in the States.

CONSTITUTION: by at least 3 Judges of the Court. See S. 283 of the 1999 Constitution as amended.

JURISDICTION: it has appellate and supervisory jurisdiction on civil matters involving questions of customary Law. See S. 282 of the 1999 Constitution as amended.

THE ELECTION TRIBUNALS

ESTABLISHED: see S. 285 of the 1999 Constitution as amended.

Types of Election Tribunals are:

1. THE COURT OF APPEAL: It sits only on Presidential Election in its original jurisdiction. See S. 239(1) of the 1999 Constitution as amended

2. THE NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION PETITION TRIBUNALS:It sits on petitions from the States and Federal Legislative Houses elections.

3. GOVERNORSHIP ELECTION TRIBUNAL: It sits on petitions arising from gubernatorial elections of the States.

 APPOINTMENT: The Chairman and other Members of the Tribunals are appointed by the President of the Court of Appeal in consultation with the Heads of the Courts of a State.

QUALIFICATIONS: It is either a Judge of the High Court, Customary Court or at least a Chief Magistrate. See the Sixth Schedule to the 1999 Constitution as amended.

COMPOSITION: it is composed of a Chairman and two (2) members. See the Sixth Schedule to the 2nd Alteration Act of the 1999 Constitution as amended.

CONSTITUTION: it is composed of a Chairman and two (2) members.

QUORUM: a Chairman and one (1) member

 REMOVAL: by the President of the Court of Appeal.

NB: The time for the presentation of election petition is within 21 days after the declaration of results. Judgment of the Tribunal is to be given within 180 days of the filling of the Petition. Appeals arising from election Tribunals are to be dealt with within 60 days of the delivery of the judgment.

The Federal High Court now has Original Jurisdiction on:

a. pre-election or party matters; and

b. to decide whether a person has been validly elected, or the term of office has elapsed of the members of the National Assembly or the State House of Assembly. See S. 27 of the First Alteration Act 2011 to the 1999 Constitution.

The institution of civil proceedings in a wrong court raises the following ethical issues:

1.     Negligence: This is a neglect of the professional duty of skill and care placed on a counsel by his client. For this reason, the client may sue the counsel for negligence.

2.     Professional Incompetence: The counsel also displays lack of capacity by instituting the case in a wrong court. This is a breach of the confidence placed on the lawyer by the client under Rule 16 0f the Rules of Professional Conduct for Lawyers 2009.

3.     forum shopping- an attempt to institute a case where the law seems to favor the client above the best option of court, the judge could accuse the lawyer of bad practice and order a transfer or striking out of the case.

4.     Delay: When a case is filed in a wrong court, it may be struck out hence, have to be relisted in another court. However, if it is a case that can be statute barred it may lose it right of enlistment in court. The case may also be transferred if the provisions of the Court allow it, as is the case in the Federal High Court to a state High Court. In any case, valuable time is wasted.

4. C Consequential Sanctions in (a) and (b) Above

In the case of wrong use of court rules:

                                          i.         Nullification of the proceedings. See; Order 5 Rule 1(1) of the High Court of Lagos State (Civil Procedure) Rules 2012.

                                         ii.         Amendment or rectification of the irregularity in accordance with directions which the Judge may give. See; Order 5 Rule 1(2) of the High Court of Lagos State (Civil Procedure) Rules 2012.

                                       iii.         The court may sanction the party who has infringed the rules of court by setting aside wholly or partly the processes before it.

In the case of wrong choice of court:

                                          i.         An order would be made striking out the case for lack of jurisdiction. See; Okolo v Union Bank of Nigeria Ltd (2003) 3 NWLR (pt. 859) at 110, Okoye v Nigeria Construction & Furniture Co. Ltd (1991) 6 NWLR (pt.199) 501, where the Supreme Court held that the proper order to make where a court has no jurisdiction to entertain an action is that of striking it out.

 Note: wrong choice of court robs the court of its jurisdiction and power to preside over the case since jurisdiction is the foundation of all cases.

                                        ii.         An order for costs against the legal practitioner since this may have caused delay in the case/matter of his client.

                                       iii.         The client may also be entitled to institute an action in negligence against the legal practitioner.